Ground 2
74 That question, however, is the gravamen of Ground 2.
75 The primary judge observed, at [11] of her Honour's reasons, that the Delegate made no adverse findings in respect of the First Appellant's credibility and accepted that the Appellants satisfied the "time of application" criterion in cl 202.211(1)(a) of Sch 2 to the Regulations.
76 While differing in respect of the conclusions capable of being drawn from that circumstance, both Ms Germov's and Mr Wood's submissions accept each of those premises. I proceed on the basis that they are common ground.
77 The "time of application" criterion contained in cl 202.211 was as follows:
(1) If the application does not include a proposal by an approved proposing organisation, the applicant:
(a) is subject to substantial discrimination, amounting to gross violation of human rights, in the applicant's home country and is living in a country other than the applicant's home country; …
78 It is uncontentious that "Families of Hope Australia", although eligible to be a sponsor, was not an approved proposing organisation pursuant to cl 202.111 of Sch 2 to the Regulations. Accordingly, the "time of application" criterion provided for in cl 202.211(1)(a) had to be satisfied as at 6 December 2017; the date on which the Appellants' application was lodged.
79 The Delegate's Decision Record is undated. However, the outcome of their applications was communicated to the Appellants under cover of a letter dated 13 December 2017. Both parties accept that it is open to infer that the Delegate made her decision on 13 December 2017. That was seven days after their applications had been lodged.
80 Neither party contends that there is anything in, or extrinsic to, the Delegate's reasons to suggest that the Delegate had had regard to a material change of circumstance occurring in the short period between the date of Ms XA's application and the date of the Delegate's decision.
81 It is common ground that a freedom of information request made by the Appellants for a copy of the Minister's file produced no internal records or file notes concerning the Delegate's consideration of cl 202.222. Neither party submits that an inference that a change of circumstance might explain the Delegate's reasoning is open to be drawn.
82 Ms XA's claims are as set out at [9]-[13] above.
83 Clause 202.222, as at 13 December 2017, was in the following terms:
(1) If:
(a) the applicant met the requirements of subclause 202.211(2) at the time of application; and
(b) the applicant's proposer is, or has been, the holder of a Subclass 202 visa;
the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa having regard to the extent of the applicant's connection with Australia.
(2) If subclause (1) does not apply, and the application does not include a proposal by an approved proposing organisation, the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to:
(a) the degree of discrimination to which the applicant is subject in the applicant's home country; and
(b) the extent of the applicant's connection with Australia; and
(c) whether or not there is any suitable country available, other than Australia, that can provide for the applicant's settlement and protection from discrimination; and
(d) the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.
(3) …
It is not suggested that the First Appellant satisfies subcl (1).
84 Mr Wood accepts, and I take it to be uncontentious, that cl 202.222(2)(a) therefore required the Delegate to have "regard to the degree of discrimination" to which Ms XA had been subject to in her home country, together with the three other factors listed in that subclause, to inform the single evaluative decision the Delegate was required to make.
85 In her Decision Record (set out above in full at [14]), under the heading "Degree of persecution or discrimination" the Delegate recorded:
The applicants have demonstrated that they are subject to some degree of persecution or substantial discrimination in their home country.
Then, having also addressed herself sequentially to the three other factors to which she was required to have regard in informing her ultimate decision, the Delegate's reasoning was as follows:
I accept that the applicants are subject to some degree of persecution or discrimination in their home country and have some connection to Australia. Although there is no evidence that there is another country available for the applicant's settlement and protection Australia does not have the capacity to provide for permanent settlement of all applicants at this time.
Weighing those factors together, I am not satisfied that there are compelling reasons for giving special consideration to granting the applicant a Class XB visa. …
86 I have noted earlier that Robertson J's reasoning in Jabbour is not authority for the proposition that the Delegate would fall into judicially reviewable legal error by not complying with the Policy Guidelines. However, nothing in Jabbour suggests that the absence of a statutory duty to provide reasons supports the conclusion that a lesser standard of analysis applies to reasons in fact given. Nor do I apprehend that the Minister suggests otherwise: with one qualification. The significant qualification Mr Wood makes to that proposition is that, having regard to the reasoning of the plurality (French CJ, Bell, Keane and Gordon JJ) in Plaintiff M64 at [25], where a decision maker is not required to give reasons for a decision it may be difficult to draw an inference that the decision was attended by an error of law because of what was not said by the decision-maker. I accept that submission.
87 However, as the reasoning that both precedes and follows their Honour's observation at [25] of Plaintiff M64 suggests, I do not take that observation to be intended to exclude the possibility of an inference being drawn from a lacuna in a decision-maker's reasons if those reasons, read fairly without an eye keenly attuned to the detection of error, make it clear that an error of law has been made. It is well settled law that any powers and discretions that a statute confers upon a public official are only to be exercised in a manner consistent with achieving the objects of that conferral.
88 Given that the Delegate's reasons take the form of a decision record, and nothing to the contrary having been advanced on the Minister's part, I infer that that it was the Delegate's intention to document her decision, as the Minister's policy provides, "in such a way as to stand up to scrutiny by the public or an Australian court". But that, in the end, is immaterial.
89 I take it to be uncontentious that if the reasons given for a particular decision reveal that a public official has proceeded on a misunderstanding of, or has exceeded, his or her power, and his or her exercise or purported exercise of power is thereby affected, then the action purportedly taken pursuant to that power will be invalid: see Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179.
90 That principle that an evaluative or discretionary power reposed in an officer of the Commonwealth remains subject to judicial review is long established and legally uncontroversial. As Dixon J said in Shrimpton v Commonwealth [1945] HCA 4; 69 CLR 613 at 629-630:
… [C]omplete freedom from legal control, is a quality which cannot ... be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force.
91 In Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478, Kirby and Callinan JJ more recently observed to the same effect:
69 … To talk of "absolute" judicial discretions, at least where such discretions are conferred by an Australian statute, involves a contradiction in terms. Absolute discretions are a form of tyranny.
70 All repositories of public power in Australia, certainly those exercising such power under laws made by an Australian legislature, are confined in the performance of their functions to achieving the objects for which they have been afforded such power. No Parliament of Australia could confer absolute power on anyone. Laws made by the Federal and State Parliaments are always capable of measurement against the Constitution. Officers of the Commonwealth are always answerable to this Court, in accordance with the constitutional standard. Judges within the integrated judicature of the Commonwealth are answerable to appeal and to judicial review. This does not mean that a discretionary power given to a judge, should be narrowly confined or hemmed about with restrictions and limitations, whether called principles or "guidelines" or anything else. But it does mean that there are legal controls which it is the duty of courts to uphold when their jurisdiction is invoked for that purpose.
(Citations omitted.)
92 It is not in dispute that the Delegate accepted Ms XA's credit.
93 Having regard to her accepted claims, the Delegate's reference to Ms XA as having suffered "some degree of persecution of discrimination" is significant. If "some degree" is to be understood as referring to a modest or unevaluated degree of persecution, I would accept Ms Germov's submission that this sentence would demonstrate either a fundamental misunderstanding of the Delegate's statutory task or a dismissive approach on her part which is entirely inconsistent with the Delegate having given proper, genuine and realistic consideration to those claims.
94 I do not understand Mr Wood to have disputed that proposition.
95 The expression "proper, genuine and realistic consideration to the merits of the case" has its origins in the observations of Gummow J (when sitting as a judge of this Court) in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; 14 ALD 291. I accept Mr Wood's submission that Carrascalao is authority for the proposition that this expression should be approached with caution, lest the Court stray impermissibly into merits review. That accepted, Mr Wood accepts that cl 202.222(2) required the Delegate to have regard to "the degree" of discrimination to which Ms XA had been subject to in informing the state of satisfaction (or absence thereof) which the Delegate was ultimately required to form. Mr Wood does not submit that if the Court were to find that that duty was unfulfilled the Court would have strayed impermissibly into merits review.
96 Rather, Mr Wood submits that the Appellant bears the burden of demonstrating that the Delegate committed the error alleged. There must be proof, capable of satisfying the Court on the balance of probabilities, that the Delegate's statutory duty was not lawfully performed. I accept that submission. However, it is uncontentious that proof of an alleged error need not be established by extrinsic material. In some circumstances such an error can be established only from what the decision maker actually said on a subject: see Plaintiff M64 per French CJ, Bell, Keane and Gordon JJ at [39].
97 The critical issue therefore is whether the Delegate's reasons, read fairly, evidence to the requisite degree that she committed the error Ms Germov alleges, or whether, as Mr Wood submits, they do not.
98 Read fairly, Mr Wood submits, the Decision Record shows that the Delegate did not find that Ms XA had suffered "some degree" of persecution or discrimination as would refer to only a modest or unevaluated degree of such harm. Rather, read fairly and as a whole, the Delegate's reasons reveal that the Delegate accepted that Ms XA had suffered "substantial discrimination". Mr Wood submits that such a conclusion, while terse, was sufficient to discharge the Delegate's statutory duty to have regard to the degree of discrimination to which Ms XA had been subject.
99 I have set out above at [51]-[60] the three step reasoning that Mr Wood submits entitles this Court to reject the proposition that the Appellants have discharged their burden of proof. However, there are difficulties regarding the plausibility of each of those three steps.